Pirog v. Astrue

Filing 33

ORDER re (11 in 4:08-cv-02094-SBA) MOTION to Dismiss for Lack of Jurisdiction Social Security Case filed by Michael J. Astrue, (17 in 4:08-cv-02093-SBA) MOTION to Dismiss for Lack of Jurisdiction filed by Michael J. Astrue. Signed by Judge ARMSTRONG on 8/17/11. (lrc, COURT STAFF) (Filed on 8/17/2011)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 JOHN B. PIROG, Case No: C 08-2093 SBA C 08-2094 SBA Plaintiff, 7 ORDER 8 vs. Docket 17 9 MICHAEL ASTRUE, 10 Defendant. 11 12 On April 22, 2008, pro se Plaintiff filed a complaint for judicial review of the 13 decision of the Commissioner of Social Security as a result of the denial of benefits. Dkt. 14 1. Also on April 22, 2008, the Court issued its Procedural Order for Social Security 15 Review Actions, which requires Defendant to file an answer, as well as Plaintiff to file a 16 motion for summary judgment or for remand, and establishes a briefing schedule in relation 17 to those matters. Dkt. 2. On August 4, 2008, instead of filing an answer, Defendant filed a 18 motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 19 12(b)(1). Dkt. 17. On November 7, 2008, the Court denied Defendant’s motion to dismiss. 20 Dkt. 21. On November 24, 2008, Defendant filed a motion for reconsideration under 21 Federal Rule of Civil Procedure 60(b)(6). Dkt. 22. On July 16, 2009, the Court granted 22 Defendant’s motion for reconsideration, and, as a result, Defendant’s motion to dismiss is 23 still pending before this Court. Dkt. 32. 24 Since the Court issued its order on July 16, 2009 granting Defendant’s motion for 25 reconsideration there has been no action taken in the case by either party. Dkt. 32. Thus, 26 the Court does not have the Plaintiff’s opposition or Defendant’s reply pertaining to 27 Defendant’s motion to dismiss. Moreover, Plaintiff has not prosecuted his case with due 28 diligence given his lack of contact with the Court for over two years. Nevertheless, 1 because no specific briefing order on Defendant’s motion to dismiss has been issued, pro se 2 Plaintiff may not have been aware of his obligation to respond to the motion to dismiss or 3 to diligently prosecute the instant action. Accordingly, 4 IT IS HEREBY ORDERED THAT 5 1. 6 7 Defendant shall serve Plaintiff at both his California and Iowa addresses with a copy of its motion to dismiss papers by no later than August 24, 2011. 2. Plaintiff shall file his opposition of no more than ten (10) pages to 8 Defendant’s motion to dismiss by no later than September 7, 2011. If Plaintiff does not 9 intend to prosecute this action, he should file a stipulation for dismissal under Federal Rule 10 of Civil Procedure 41(b), a request for dismissal under Rule 41(a), or a statement of non- 11 opposition by that deadline. Plaintiff is hereby warned that his failure to comply with this 12 order will result in the granting of Defendant’s motion to dismiss and dismissal of his 13 action under Rule 41(b), especially given that Plaintiff has not prosecuted this action in any 14 manner for over two years. “Pursuant to Federal Rule of Civil Procedure 41(b), the district 15 court may dismiss an action for failure to comply with any order of the court.” Ferdik v. 16 Bonzelet 963 F.2d 1258, 1260 (9th Cir. 1992). As such, the failure to prosecute an action 17 and failure to file an opposition to a motion to dismiss in the manner prescribed by the 18 Court is grounds for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per 19 curiam). While the Court does not countenance Plaintiff’s failure to prosecute, the Court 20 grants Plaintiff an additional opportunity to respond to Defendant’s motion in consideration 21 of less drastic alternatives to dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 22 Cir. 2002). Nonetheless, Plaintiff is warned that the failure to file a response by the 23 deadline set herein will be deemed grounds for granting Defendant’s motion and 24 dismissing the action under Rule 41(b), without further notice. As Plaintiff has had 25 ample time to respond to Defendant’s motion to dismiss and has filed several prior 26 requests for a continuance, the Court will not entertain any further requests for a 27 continuance. 28 -2- 1 2 3 2. Defendants shall file a reply or other response of no more than ten (10) pages by no later than September 14, 2011. IT IS SO ORDERED. 4 5 6 Dated: August 17, 2011 _____________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 1 2 3 4 5 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 PIROG et al, Plaintiff, 8 9 10 v. ASTRUE et al, Defendant. 11 / 12 Case Number: CV08-02093 SBA 13 CERTIFICATE OF SERVICE 14 15 16 17 18 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 17, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 19 20 21 22 23 24 John B. Pirog 336 Bon Air Center #233 Greenbrae, CA 94904 Dated: August 17, 2011 Richard W. Wieking, Clerk 25 By: LISA R CLARK, Deputy Clerk 26 27 28 -4-

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